Madras High Court
State Represented By vs Ponnuvel on 17 October, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
2024:MHC:3587
Crl.A.No.130 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.09.2024
Pronounced on 17.10.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.No.130 of 2019
State represented by
The Public Prosecutor,
High Court, Madras-104.
[Uthiramerur P.S
Crime No.175/2014]
... Appellant/Complainant
Vs.
Ponnuvel
... Respondent/Accused
PRAYER: Criminal Appeal filed under Section 378 of the Criminal
Procedure Code to set aside the judgment of acquittal of the
respondent/accused dated 13.04.2018 in SC.No.14 of 2015 on the file of the
Additional Sessions Court [Fast Track Court], Kancheepuram and convict the
respondent/accused for the charges framed against him.
For Appellant : Mr.A.Gokulakrishnan
Additional Public Prosecutor
For Respondent : Mr.T.Vijayaraghavan
*****
JUDGMENT
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C.KUMARAPPAN, J.
The instant Criminal Appeal has been filed by the State against the
order of acquittal passed in SC.No.14 of 2015 by the Additional Sessions
Court [Fast Track Court], Kancheepuram vide order dated 13.04.2018.
2. The relevant facts which are necessary for the disposal of this
Appeal, are as follows:-
(a) There was a property dispute between the accused family and the
deceased Chandran's family. On 01.04.2014 at about 3.00.p.m, while the son
and wife of the deceased Chandran qua PW1 and PW2 were in their
residence, the accused developed wordy quarrel with PW2-Kanniyammal.
Since PW2-Kanniyammal questioned the high handedness of the accused, he
attacked her with Velikathan wooden log on her right wrist and back and
thereby, she sustained injuries. When PW1 intervened to protect his mother,
she instructed him not to get involved in the quarrel. During such time, the
deceased Chandran also returned home, after grazing cattle. On coming, he
joined PW2 and questioned the accused. Enraged by such conduct, the
accused assaulted the deceased on his head. Immediately, the deceased fell
down and died on the spot. It is the further case of the prosecution that after
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the demise of deceased Chandran, PW1 took his injured mother PW2 to
Uthiramerur Government Hospital, where she was provided with first aid and
thereafter, referred to Chengalpattu Government Hospital, where she was
admitted as an inpatient for treatment.
(b) While so, when PW12-Mr.Munusamy, Sub Inspector of Police was
in the Uthiramerur Police Station, PW1-Sudhakar and PW2-Kanniyammal
came to the police station and gave police complaint-Ex.P1 and the same was
received and registered in Crime No.175 of 2014 for the offence under
Sections 324 and 302 IPC. After registering the FIR, he made arrangements
to forward the same to the concerned jurisdictional Magistrate and to the
Investigating Officer.
(c) On receipt of the FIR, PW14-Mr.Kumar, Investigating Officer
proceeded to the scene of occurrence on 02.04.2014 at about 06.15.a.m. He,
in the presence of PW3-Natarajan and one Dhanasekar, prepared an
Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P16). On the very same
day, at about 7.15 a.m, the Investigating Officer collected the sample soil, as
well as the blood stained soil, in the presence of PW4-Chitti Babu and PW5-
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Ethiraj. He then directly proceeded to the Chengalpattu Government
Hospital and recorded the statement of PW1-Sudhakar, and PW2-
Kanniyammal.
(d) Immediately thereafter, he conducted inquest upon the body of the
deceased in the presence of witnesses, and also made arrangements for the
postmortem of the body of the deceased. In the meanwhile, at about
2.00.p.m, the Investigating Officer arrested the accused Ponnuvel, in the
presence of PW5-Ethiraj and PW6-Shanmugam. After the arrest, the accused
has given a voluntary confession statement and the same was recorded in the
presence of the same witnesses. On the basis of the confession statement, a
discovery of fact was effected by recovery of a blood stained black striped
white shirt [M.O.2], and blue jeans [M.O.3] under Mahazar Ex.P19. At about
7.00.p.m, the accused was remanded the judicial custody. The Investigating
Officer-PW14 examined the Doctors viz., PW9-Dr.Mahesh Ram and PW11-
Dr.Sathish Rajan and recorded their statements. He also recorded the
statement of the postmortem Doctor-Dr.Balaji Rajasekar [PW10]. After that,
he forwarded the alteration report to the concerned jurisdictional Magistrate.
(e) On his transfer, PW15-Mr.Manimaran took up further investigation
and recorded the statements of the scientific officers-Mr.Srinivasan [PW13]
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and Ms.Subalakshmi and also collected the forensic reports. After
concluding the investigation, he laid the charge sheet against the accused.
3. Before the Trial Court, the prosecution relied as many as 23
documents as Exs.P1 to P23, examined 15 witnesses as PW1 to PW15, and
marked 3 Material Objects as M.O.1 to M.O.3 to prove their case. On behalf
of the defence, one document has been marked as Ex.D1.
4. The Trial Court, after having considered the oral and documentary
evidences, had found that the prosecution did not prove the charge beyond
reasonable doubts, and ultimately acquitted the accused.
5. Assailing the said order of acquittal, the State has preferred the
instant Criminal Appeal.
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6. The learned Additional Public Prosecutor would vehemently contend
that PW2 is the injured witness, and that her evidence was corroborated by
PW1 viz., the son of the deceased, and PW2, and also through an independent
witness PW6. The findings rendered by the Trial Court that the delay in
registering the FIR, would cause doubt in the prosecution case, is against all
canons of law in a way, according to him, the same is perverse finding. The
learned Additional Public Prosecutor would further contend that the non
submission of AR copy of Uthiramerur Hospital may be an instance of
irregular or a defective investigation, but such defective investigation will in
no way, overshadow the testimony of the wholly reliable witnesses of PW1
and PW2. It is the further contention of the learned Additional Public
Prosecutor that, when there is an injured eyewitness, that too when her
statement was corroborated by 2 other witnesses, among whom, there was an
independent witness, any discrepancy in the opinion of the Doctor or in
respect of discovery of fact, the alleged unnatural conduct of PW1 will in no
way affect the prosecution's case, and that any contrary finding would only be
a perverse and superficial finding, which would in no way overshadow the
creditworthiness of the trustworthy injured eyewitnesses. Hence, he prayed
to allow the instant Criminal Appeal.
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7. Per contra, the learned counsel for the respondent/accused would
contend that the very order of acquittal would reinforce and fortify the
innocence of the accused. It was further contended that merely because there
exists another view, cannot be a ground to interfere with the plausible finding
rendered by the Trial Court. The learned counsel would further contend that
the delay in registering the FIR would go to the root of the matter, and that
the non submission of the accident register of the Uthiramerur Police, would
definitely be fatal to the prosecution's case, as the same is nothing but,
suppression of the first spontaneous version of the injured. The learned
counsel would further contend that, if really PW2 reached Chengalpattu
Government Hospital at about 5.00.p.m, the delay upto 9.45.p.m to give her
treatment would also create a grave suspicion to the prosecution's case. The
learned counsel would further contend that the delay in registering the FIR,
and the delay in giving treatment would pave way for embellishment,
craftsmanship and improvement in the narration of the occurrence, which
would definitely cause a reasonable doubt in the prosecution's case.
Therefore, it is the contention of the learned counsel for the respondent that,
the view expressed by the Trial Court is a plausible view, which cannot be
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interfered with while re-appreciating the evidence, that too in an appeal
arising against the order of acquittal.
8. We have given our anxious consideration to either side submissions.
9. It is well settled principle of law that there is no difference between
the appeal against conviction, and appeal against acquittal. Even in the
appeal filed against the order of acquittal, this Court has got full power to
review the entire evidence. But, there is a very thin, but a fine distinction
between the appeal against the conviction on the one hand, and the appeal
against acquittal on the other hand. While dealing with the appeal against
acquittal, we must keep in mind that the presumption of innocence was once
again reinforced. Furthermore, whenever the Appellate Court deals about the
appeal against acquittal, unless there is a compelling reason, and existence of
error apparent on the face of record, the order of the acquittal cannot be
lightly interfered with.
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10. Before we delve dealing into the factual position, we would also
like to refer the latest judgment of the Hon'ble Supreme Court in Mallappa v.
State of Karnataka reported in (2024) 3 SCC 544, wherein the Hon'ble
Supreme Court, after discussing various judgments, has summarised the
principles in deciding an appeal from an order of acquittal. For ready
reference, the relevant paragraph is extracted hereunder:-
42. Our criminal jurisprudence is essentially based on the promise
that no innocent shall be condemned as guilty. All the safeguards and the
jurisprudential values of criminal law, are intended to prevent any failure
of justice. The principles which come into play while deciding an appeal
from acquittal could be summarised as:
(i) Appreciation of evidence is the core element of a criminal trial
and such appreciation must be comprehensive — inclusive of all
evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the court, after appreciation of evidence, finds that two views
are possible, the one in favour of the accused shall ordinarily be
followed;
(iv) If the view of the trial court is a legally plausible view, mere
possibility of a contrary view shall not justify the reversal of
acquittal;
(v) If the appellate court is inclined to reverse the acquittal in appeal
on a reappreciation of evidence, it must specifically address all the
reasons given by the trial court for acquittal and must cover all the
facts;
(vi) In a case of reversal from acquittal to conviction, the appellate
court must demonstrate an illegality, perversity or error of law or
fact in the decision of the trial court.”
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11. Now keeping in mind the above principles, let us proceed to
consider the facts of the instant case.
12. According to the prosecution, PW1 is the son of the deceased and
PW2, were present at the scene of occurrence, when the accused assaulted the
deceased and PW2. The occurrence took place at about 3.00.p.m on
01.04.2014, wherein, PW2 also sustained injuries. According to PW2, after
the occurrence, she went to Chengalpattu Government Hospital at about 5.00
p.m. Prior to that, she had also taken first aid at Uthiramerur Hospital.
Admittedly, there are no evidence of the treatment taken by PW2 at
Uthiramerur Hospital. In this regard, it is the contention of the accused that
the very first spontaneous information provided to the Doctor at Uthiramerur
Hospital, was suppressed by not producing the Uthiramerur Hospital accident
register.
13. However, it is the contention of the learned Additional Public
Prosecutor that, when there is an injured witness, her testimony must be kept
in higher pedestal and her evidence have to be given credence over the other
witnesses. He would further urge that the defective investigation will in no
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way cause any dent in the prosecution case. The learned Additional Public
Prosecutor has relied upon the judgment of the Hon'ble Supreme Court in
Dharaj Singh Alias Shera and others Vs. State of Punjab reported in (2004)
3 SCC 654.
14. As rightly contended by the learned Additional Public Prosecutor,
the mere defective investigation should not be allowed to overshadow or
defeat the testimony of the wholly reliable witnesses, only because the AR
copy of the hospital was not produced. However, the thrust of the argument
of the accused is, the earliest information was suppressed.
15. Further, while looking at the evidences of PW1 and PW2, there is a
long drawn motive lingering between the accused and deceased. The learned
Trial Judge, who had the advantage of looking at the demeanour of the
witnesses, has raised a reasonable doubt about the presence of PW1, who is
the son of the deceased and PW2, at the scene of occurrence. Here, PW1,
who is able bodied person, admittedly did not at all reacted to the gruesome
occurrence, where his father was done to death. This conduct was relied by
the Trial Court to disbelieve PW1's presence at the scene of occurrence. It is
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true that each person has their own peculiar reaction for an action. Therefore,
we cannot expect a particular reaction for a set of action. Each case has to be
weighed according to it's peculiar facts. But considering the reasons of the
Trial Court, the view taken by the Trial Court is plausible and reasonable,
whereby we could not find any perversity over the same.
16. In addition to that, from the evidence of postmortem Doctor-PW10,
the defence tried to establish that there was a possibility for the deceased to
be alive for about two hours after the alleged attack. Placing reliance upon the
above evidence of the Doctor, the Trial Court found the conduct of PW1 and
PW2 to be unnatural, as they simply left the deceased at the scene of
occurrence and proceeded to hospital to have PW2 treated. It is the finding of
the Trial Court that if really there was an occurrence as stated by the
prosecution, leaving the deceased, who was struggling for his live, at the
scene of occurrence, would not have happened. In this regard, the Trial Court
found that no prudent man would leave a person, who was fighting for his life
abruptly and proceed to the hospital to get treatment for themselves. This
according to us, cannot be construed as a perverse finding, but rather would
very well fall within the definition of plausible reasoning.
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17. The Trial Court has also found the discrepancy between the mode
of conveyance from Uthiramerur Hospital to the Chengalpattu Hospital.
According to PW1, his mother PW2 was taken to the Chengalpattu Hospital
by ambulance, whereas PW2 had stated that she went in an auto. Therefore,
the Trial Court found that if PW2 was taken to the Chengalpattu Hospital as
projected by the prosecution, there could not be any discrepancy between
PW1 and PW2 about the mode of conveyance. Now taking into
consideration of reasons stated supra, this finding also cannot be held to be a
perverse finding.
18. Besides, an yet another important circumstance was relied by the
Trial Court, on the basis of non production of the accident report of the
Uthiramerur Hospital. It is the case of the prosecution that immediately after
the incident, PW2 and PW1 rushed to the Uthiramerur Hospital so as to take
a treatment, where they were referred to the Chengalpattu Hospital for further
treatment. When PW2 admits that she took treatment at Uthiramerur
Hospital, definitely there would have been an accident register. But, no
accident register was submitted before the Court. According to the defence,
if the accident register is produced, the same would go against the
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prosecution's case and it is for this reason that the prosecution had not
produced the AR copy. The said contention is again plausible reasoning in
the background of the other reasonings. Besides, the long delay in giving
treatment to PW2 at Chengalpattu Government Hospital, though she reached
there at about 5.00.p.m, also definitely create a reasonable doubt. No doubt
PW2 has suffered injury, but the concern is as to whether she sustained the
injury along with the deceased, and whether PW1 had an opportunity to
witness the occurrence. The Trial Court has doubted the presence of PW1
and PW2 on account of their unnatural conduct, the absence of accident
register of Uthiramerur police station and also the unexplained delay in
giving treatment to PW2.
19. It is pertinent to mention here that PW6 was also examined as an
eyewitness, who is the resident of same village. Though he was projected as
an eyewitness, his narration in chief examination appears to be hearsay in
nature. On a harmonious reading of his evidence, he reaches the scene of
occurrence only after the alleged occurrence had taken place. Therefore, PW6
will in no way helpful the case of the prosecution.
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20. Though the finding in respect of the non mentioning of the
deceased body at the scene of occurrence, and the absence of cattle shed in
the rough sketch, may appear to be perverse findings yet the same would in
no way cause a dent in view of the other reasonable doubts, raised by the
Trial Court. It is pertinent to mention here that the reasonable doubt is
essentially a serious doubt in the case of the prosecution and not mere minor
inconsistencies. A reasonable doubt is one which renders the possibility of
guilt as highly doubtful. In this regard, it is useful to refer the judgment of
the Hon'ble Supreme Court in Kalinga Alias Kushal Vs. State of Karnataka,
reported in (2024) 4 SCC 735. In the present case, doubts projected by the
Trial Court comes within the parameter of reasonable doubt. Thus, the views
of the Trial Court about the reasonable doubt are plausible views.
21. Thus, in line with the settled principle of law, even when there is a
possibility to take a different view, the same cannot be a ground to interfere
with the plausible findings rendered by the Trial Court, as the views in
support of the accused has to be preferred. Hence, this Court is of the firm
view that the finding of acquittal recorded by the Trial Court does not warrant
any interference.
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22. In the result, this Criminal Appeal stands dismissed.
[M.S.R., J.] [C.K., J.]
17.10.2024
Index:Yes
Speaking order
Neutral Citation: Yes
kmi
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
kmi
Pre-delivery judgment made in
17.10.2024
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